What to so regarding how to proceed in regards to distribution of my estate after my passing?

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What to so regarding how to proceed in regards to distribution of my estate after my passing?

I have received confusing information, like if I plan to leave everything to my spouse and then my son and daughter both 21 years old there is no need to do any paperwork as that’s the default by existing U.S. law. My assets are basically consisting on our current homestead in TX and 2 apartments in FL owned jointly with my wife thru an established LLC. Our family of 4 is well settled with no conflicts and my desire is to leave the control of current assets to my wife and eventually to our children when we both pass away. So, do I really need to go thru paperwork and expenses or will my wife and eventually our offspring get everything straight without government bites? If required, should I include my children in the LLC?

Asked on February 28, 2018 under Estate Planning, Texas

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

In a perfect world, where everything went exactly according to plans and expectations, a Will and/or Trust would be unnecessary, and rather than spend money on the paperwork, it would be more fun to spend the money to better enjoy one's activities of daily living and more societally beneficial to contribute the money that otherwise would go to a lawyer to a charity that helps those less fortunate than ourselves.
Unfortunately, things too often don’t work out the way we plan, and in that context you could regard creating a Will and/or Trust as an insurance policy designed to protect your family if things don’t work out. A great deal can happen between now -- when everyone is happy and getting along — and some time down the road when issues as to who gets what can arise. That is why it would make sense to spend the money and do the paperwork now rather than leave it to an uncertain future.
Some examples. You seem to be assuming that you would pass away before your wife, and she would in turn leave everything to your two children equally.  What if your wife pre-deceased you, or alternatively, remarried after you pass? I assume your 2 children are now single and have no children. What if your children marry and one of their marriages winds up in divorce court where the about to be ex-spouse demands half their assets — including what you left to your child? (Approximately 50% of all marriages fail.) Even if both marriages are successful but one of the children has a string of bad luck and has to file for bankruptcy? Or if a child tragically predeceases you or your spouse and leaves minor children who are too young to inherit, so a court would have to step in and name an expensive guardian for the minor’s assets?  What if you and your wife pass simultaneously, such as in a plane crash, so that the joint ownership in the LLC doesn’t serve to transfer its ownership.
In short, it would make a great deal of sense for you and your wife to speak to a lawyer and get the lawyer’s advice (because that’s what you really are paying for — the paperwork good lawyers prepare really is just the manifestation of their oral advice in legally acceptable format). Then, if needed, you could retitle the assets or establish Wills and/or create a Living Trust so that your wishes would stand a far better chance of being carried out. If a Will or Trust is not necessary, and you could accomplish enough with "joint ownership" (and beware, because that term itself has a variety of meanings, each with different legal consequences) and beneficiary or pay on death designations, that would be great. 
 
For most people estate planning need not cost a fortune either.  While fill in the blanks and do-it-yourself forms exist, and you might create documents using services such as such as LegalZoom or Rocket Lawyer, getting a qualified lawyer's advice would be far better than leaving things as they are now — unsettled — unless things would work out exactly as you contemplate.


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